Michigan Law Review Volume 103 Issue 7 2005 Scylla or Charybdis: Navigating the Jurisprudence of Visual Clutter M. Ryan Calo University of Michigan Law School Follow this and additional works at: https://repository.law.umich.edu/mlr Part of the Commercial Law Commons, First Amendment Commons, and the Marketing Law Commons Recommended Citation M. R. Calo, Scylla or Charybdis: Navigating the Jurisprudence of Visual Clutter, 103 MICH. L. REV. 1877 (2005). Available at: https://repository.law.umich.edu/mlr/vol103/iss7/3 This Note is brought to you for free and open access by the Michigan Law Review at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in Michigan Law Review by an authorized editor of University of Michigan Law School Scholarship Repository. For more information, please contact [email protected]. NOTE Scylla or Charybdis: Navigating the Jurisprudence of Visual Clutter M. Ryan Calo* TABLE OF CONTENTS INTRODUCTION .................................. .......... .................................... ...... 1877 I. A HELLER OF A TRY: THE POPULAR 0NSITE/0FFSITE DISTINCTIONRUNS AFOUL OF THE FIRST AMENDMENT. ..... 1885 II. IF THE GREATER CULPRIT: THE COMMERCIAL/NONCOMMERCIAL DISTINCTION REMAINS VIABLE AFTERD ISCOVERY NETWORK.. ................................. 1889 Ill. CERBERUS: PROTECTING THE MARKETPLACE OF IDEAS .... 1894 CONCLUSION·························································································· 1898 INTRODUCTION In the early 1980s, outdoor advertising was a one-billion dollar industry.1 Within the last twenty years, it has grown five-fold.2 Today's billboards both can talk.3 and they can listen.4 Spokespersons for the industry praise its advancements and proliferation with their own brand of poetry: "Things are happening up there: moving parts, eye- * I would like to thank Brooke Reid, Marisa Bono, Margaret Curtiss, Daniel Tenny, and the entire Notes Office. I was simply floored by the amount of work they put into my Note - collectively, at least as much as I. I would also like to thank Daria Roithmayr and Don Herzog for their helpful insights. 1. See Outdoor Adver. Ass'n of America, Inc., U.S. Outdoor Industry Spending over the Past Ten Years, at http://www.oaaa.org/outdoor (displaying table charting outdoor advertising by spending since 1993) (last visited Dec. 1, 2004). 2 Id. 3. See Clear Channel Outdoor, Why Outdoor?, at http://www.clearchanneloutdoor.com/ product/WhyOutdoor.asp (advertising the following: "Didn't know billboards could talk back? Tie your message to a toll free cellular number or ask your audience to tune into a low band radio frequency for more information on the ad displayed.") (last visited Dec. 1, 2004). 4. See, e.g., Lindsay Martell, Drive-By Advertising (ABCNews television broadcast, Dec. 27, 2002) (on file with author) (describing billboards that monitor the radio frequencies to which passing cars are tuned and alter their content according to the predominant frequency). 1877 1878 Michigan Law Review [Vol. 103:1877 catching devices, video projection."5 Many local municipalities, however, are less than thrilled. Aside from the obvious visual blight,6 outdoor advertising can compromise the safety of travelers.7 Federal attempts to regulate the sea of highway billboards have backfired,8 and local governmentsare left to sink or swim alone. Meanwhile, the waters are treacherous. The jurisprudence of visual clutter is in a state of disarray. The Chief Justice of the Supreme Court has famously lamented the "genuine misfortune [that] the Court's treatment of the subject [is a] virtual Tower of Babel, from which no definitive principles can be clearly drawn."9 As this Note explains, state and local government actors must negotiate two obstacles of First Amendment law to arrive at a constitutionally permissible regulation.10 The first obstacle is the Supreme Court's decision in Metromedia, Inc. v. City of San Diego.11 Following Metromedia, regulators can neither select among noncommercial messages nor privilege commercial messages over noncommercial ones. The Court has previously defined "commercial speech" to mean, alternately, "expression related solely to the economic interests of the speaker and 5. Clear Channel Outdoor, supra note 3. This website, which belongs to an industry giant, also refers to the "explosion of out of home media." Id. 6. The Supreme Court has acknowledged "visual blight," i.e. aesthetically harmful objects or conditions, as a "substantive evil" in the context of outdoor advertising. Members of the City Council v. Taxpayers for Vincent, 466 U.S. 789, 810 (1984). 7. OFFICE OF SAFETY RESEARCH AND DEV., FED. HIGHWAY ADMIN., U.S. DEP'T OF TRANSP., RESEARCH REVIEW OF POTENTIAL SAFETY EFFECTS OF ELECTRONIC BILLBOARDS ON DRIVER ATTENTION AND DISTRACTION, FINAL REPORT (2001), available at http://www.fhwa.dot.gov/realestate/elecbbrd/elecbbrd.pdf (last visited Dec. 1, 2004) (reporting on the dangers that inhere to billboards, especially electronic, such as the "distraction of drivers"). 8. See generally Craig J. Albert, Your Ad Goes Here: How the Highway Beautification Act of 1965 Thwarts Highway Beautification, 48 U. KAN. L. Rr;v. 463 (2000) (exploring early federal attempts to regulate billboards that culminated in the Highway Beautification Act, and detailing the respective failures of these regulations to significantly reduce highway billboards). 9. Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 569 (1981) (Rehnquist, J., dissenting). 10. Billboard regulations generally implicate the First Amendment and are challenged on that basis. See, e.g., Lavey v. City of Two Rivers, 171 F.3d 1110 (7th Cir. 1999) (First Amendment challenge to a sign regulation); Ackerley Communications of Mass., Inc. v. City of Cambridge, 88 F.3d 33 (1st Cir. 1996) (same); Messer v. City of Douglasville, 975 F.2d 1505 (11th Cir. 1992) (same); Nat'! Adver. Co. v. City & County of Denver, 912 F.2d 405 (10th Cir. 1990) (same); Wheeler v. Comm'r of Highways, 822 F.2d 586 (6th Cir. 1987) (same). Cf Dwight H. Merriam & Brian R. Smith, The First Amendment in Land Use Law, in RECENT DEVELOPMENTS IN LAND USE LAW, 0203 A.L.1.-A.B.A. VIDEO L. REV. 161, 163 (Jan. 24, 1991) (sign regulation, unlike other land use regulation, "require[s] the consideration of one common issue - the protections afforded by the first amendment"). Challenges involving the Takings Clause do occur, see, e.g., Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992), but are not explored in this Note. 11. 453 U.S. 490 (1981). June 2005] Scylla or Charybdis 1879 its [sic] audience,"12 and, more recently, expression that "propose[s] a commercial transaction."13 Noncommercial speech consists of all other protected expression.14 After Metromedia, regulators who did not want to effectuate a total ban on signs took the one avenue that appeared available to them: they targeted only commercial speech. The Court's decision in City of Cincinnati v. Discovery Network, 15 however, presented a second obstacle. Following Discovery Network, regulators had to account for why they were privileging noncommercial over commercial speech when neither was intrinsically more harmful to the public.16 A growing billboard industry, meanwhile, is happy to capitalize on the resulting catch-22.17 Metromedia, though splintered18 and at times criticized,19 lays out the basic analytic framework for assessing the constitutionality of a 12. Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm'n, 447 U.S. 557, 561 (1980). 13. Bd. of Trs. v. Fox, 492 U.S. 469, 473-74 (1989). 14. See Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447, 456 (1978) (characterizing noncommercial speech as all "other varieties of speech" other than commercial). 15. 507 U.S. 410 (1993). 16. See infra notes 39-48 and accompanying text. 17. See Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 556 (1981) (Burger, C.J., dissenting) (referring to the "real and growing problems every municipality faces in protecting safety and preserving the environment in an urban area" by regulations that the "billboard industry attempts to escape"); infra notes 122-123 and accompanying text. See also supra note 10 (providing a list of recent challenges to billboard regulations). The term "catch-22" is derived from a book by that title. See JOSEPH HELLER, CATCH-22 (1955). 18. Daniel R. Mandelker, Sign Regulation and Free Speech: Spooking the Doppelganger, reprinted as Free Speech Issues in Sign Regulation, in 1 LAND USE INSTITUTE, SH018 AL.I.­ AB.A. 159, 163 (Aug. 22-24, 2002) (describing Metromedia as "badly divided"). Justice White wrote for four in invalidating the ordinance. Metromedia, 453 U.S. at 493. Justices Brennan and Blackmun concurred in the judgment. Id. at 521. Justice Stevens concurred in part and dissented in part. Id. at 540. Chief Justice Burger and Justice Rehnquist each dissented on separate grounds. Id. at 555, 569. When the Supreme Court issues an opinion with no majority, the opinion with the most votes is not automatically the holding of the Court. See Marks v. United States, 430 U.S. 188, 193 (1977). In a so-called splintered case, on those issues that have not garnered a maj ority, "the holding of the Court may be viewed as that position taken by those [Justices] who concurred in the judgments on the narrowest grounds." Id. It may be that no grounds for the decision to strike down the San Diego ordinance at issue in Metromedia were the narrowest. See Rappa v. New Castle County, 18 F.3d 1043, 1060 (3d Cir. 1994) ("Since the opinions in Metromedia share no common denominator, they do not establish a governing standard for future cases."). In the absence of obviously narrowest grounds, it is difficult to know exactly what precedential value the plurality opinion has. Cf Maxwell L. Steams, The Case fo r Including Marks v. United States in the Canon of Constitutional Law, 17 CONST. COMMENT. 321, 322 (2000) ("[T]he Court is freer to disregard a plurality decision as a matter of stare decisis than it is to disregard a majority opinion.").